Wright v. Georgia Transcript of Record
Public Court Documents
October 1, 1962
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TRANSCRIPT OF RECORD
Supreme Court of the United States
OCTOBER TERM, 1962
No. 68
NATHANIEL WRIGHT, ET AL., PETITIONERS,
vs.
GEORGIA
ON W B IT OF CERTIORARI TO T H E SU PRE M E COURT OF T H E
STATE OF GEORGIA
PETITION FOR CERTIORARI FILED FERRUARY 17, 1962
CERTIORARI GRANTED JUNE 25, 1962
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962
N o. 68
NATHANIEL WEIGHT, ET AL., PETITIONERS,
vs.
GEORGIA
ON W R IT OR CERTIORARI TO T H E SU PRE M E COURT OE TH E
STATE OP GEORGIA
I N D E X
Proceedings in the Supreme Court of the State of
Georgia ______________________________________
Bill of exceptions _______________________________
Judge’s certificate to bill of exceptions __________
Record from the City Court of Savannah, Georgia
Accusation and endorsements thereon _________
Pleas of not guilty ____________________________
Verdict of the jury ___________________________
Sentence as to Charlie L. Smart, Roscoe White,
James W. Thomas, Benjamin Carter and Jud-
son Ford __________________________________
Sentence as to Nathaniel Wright ______________
General demurrers and order overruling same __
Rulings of the Court __________________________
Motion for acquittal and denial thereof _______
Motion of Nathaniel Wright for new trial, order
to show cause and denial of motion _________
Motion of Charles L. Smart for new trial, order
to show cause and denial of m otion_________
Motion of Roscoe White for new trial, order to
show cause and denial of motion ___________
O riginal P rin t
1 1
1 1
9 7
15 8
15 8
17 10
18 10
18 10
18 11
19 11
22 14
22 14
26 17
30 20
34 24
Record Press, Printers, New Y ork, N. Y., A ugust, 1962
11 INDEX
O riginal P rin t
Record from the City Court of Savannah, Georgia
— Continued
Motion of James W. Thomas for new trial, order
to show cause and denial of motion _________ 38 27
Motion of Benjamin Carter for new trial, order
to show cause and denial of m otion_________ 42 31
Motion of Judson Ford for new trial, order to
show cause and denial of motion ___________ 46 34
Brief of the evidence__________________________ 50 38
Testimony of G. H. Thompson—
direct _________________ 50 38
cross __________________ 52 40
redirect _______________ 53 42
recross ________________ 53 42
redirect _______________ 54 42
Carl Hager—
direct _________________ 54 42
cross __________________ 55 43
redirect _______________ 57 46
recross ________________ 58 47
C. C. Dickerson—
direct _________________ 59 48
cross __________________ 59 48
G. W. Hillis—
direct _________________ 60 49
cross __________________ 61 50
redirect _______________ 61 50
recross ________________ 61 50
Order of consolidation _______________________ 63 51
Opinion, Quillian, J. ____________________________ 67 52
Judgment ______________________________________ 75 58
Motion for rehearing____________________________ 76 58
Order denying motion for rehearing _____________ 80 60
Clerk’s certificate (omitted in printing) _________ 81 60
Order allowing certiorari ________________________ 82 60
Charge of the court by Judge Alexander _______ 83 61
1
[fol. 1]
IN THE SUPREME COURT OF GEORGIA
G eorgia ) To th e P resent T erm of th e S upreme
C ourt of G eorgia
I n E rror F rom th e City
C oErRT of S ava n n a h ,
G eorgia.
In which the case is entitled.
S tate of G eorgia
—against—
N ath an iel W rig h t ,
C harles L. S m art ,
R o sco W h it e ,
J ames W. T h om as ,
B e n ja m in Carter, and
J udson F ord
B ill of E xceptions
N ow Comes, Nathaniel Wright, Charles L. Smart, Rosco
White, James W. Thomas, Benjamin Carter and Judson
Ford, as Plaintiffs-in-error, and file this their Bill of Ex
ceptions. in which the State of Georgia is the Defendant-
in-error.
Be It Remembered that, Plaintiffs-in-error were brought
up for trial in the City of Savannah, Georgia, Honorable
Columbus E. Alexander, Judge, Presiding, on the 18th
day of May, 1961, said Plaintiffs-in-error being charged
with violation of Section 26-5301 of the Code of Georgia.
Be It Further Remembered that, the trial of said case
proceeded and a Jury was stricken. However, before ar
raignment and before pleading to the accusation therein,
Plaintiffs-in-error filed a General Demurrer to said ac
cusation upon the grounds that the Statute upon which it
was based, to-wit: Section 26-5301 of the Code of Georgia,
was unconstitutional. The General Demurrer was over
ruled by Honorable Columbus E. Alexander, Judge, presid
Ch a th a m C ounty )
N ath an iel W righ t ,
C harles L. S m art ,
Rosco W h it e ,
J am es 'W . T h om as ,
B e n ja m in Carter and
J udson F ord,
Plaintiff s-In-Error
—against—
S tate of G eorgia
Defendant-Iii-Error
2
ing. Evidence was then introduced by the State at the
[fol. 2] close of which Counsel for the Defendants made
a Motion to Acquit. After argument of Counsel in the
absence of the Jury, the Motion to Acquit was overruled
by Honorable Columbus E. Alexander, Judge, Presiding.
The Jury was recalled and after argument of Counsel and
the charge of the Court in said ease, the Jury returned a
verdict of guilty, whereupon The Honorable Columbus E.
Alexander, Judge of said Court, sentenced each Defendant
to pay a fine of $100.00 or serve five months under the
jurisdiction of the State Board of Corrections, with the
exception of Defendant, Nathaniel Wright who was sen
tenced to pay a fine of $125.00 or serve six months under
the jurisdiction of the State Board of Corrections.
Be It Further Remembered that, within the time pre
scribed by Law, and on the 23rd day of May, 1961, Defen
dants duly filed their Motions for New Trial, which case
was regularly set down for hearing on the 23rd of June,
1961. The Honorable Columbus E. Alexander, Judge,
presiding, continued the Hearing on said Motion until the
21st day of July, 1961, at which time said Motion for New
Trial and Brief of Evidence was submitted to the Court
without argument of Counsel. Said Motions for New Trial
were considered by the Court and on the 24th day of July,
1961, the Honorable Columbus E. Alexander, Judge of
said Court, entered an Order overruling said Motions for
New Trial on each and every ground. On the 17th day of
August, 1961, the Honorable Columbus E. Alexander, Judge
of said Court, issued an Order permitting the cases of
Plaintiffs-in-error to be consolidated as said cases were
predicated upon identical circumstances and facts and in
volved the same defensive pleas and the same questions
of Law.
Plaintiffs-in-error make the following assignments of Er
ror :
[fol. 3] 1. Plaintiffs-in-error in due time filed the fol
lowing General Demurrer to the accusations:
3
“ GENERAL DEMURRERS
NOW COMES the Defendants in the above named and
stated case and before arraignment and before pleading to
the accusation therein, and demur thereto, and for grounds
of demurrer, say:
1. These Defendants demur to said accusation upon the
ground that the Statute upon which said accusation is based
and under which Defendants, all being Negroes, were ar
rested and charged, to-wit: Section 26-5301 of the Code
of Georgia, “ ANY TWO OR MORE PERSONS WHO
SHALL ASSEMBLE FOR THE PURPOSE OF DIS
TURBING THE PUBLIC PEACE OR COMMITTING
ANY UNLAWFUL ACT, AND SHALL NOT DISPERSE
ON BEING COMMANDED TO DO SO BY A JUDGE,
JUSTICE, SHERIFF, CONSTABLE, CORONER OR
OTHER PEACE OFFICER, SHALL BE GUILTY OF
A MISDEMEANOR” , is so vague that Defendants are
not put on notice as to what criminal act they have al
legedly committed, rendering it impossible to answer the
charge or make a legal defense, thus denying to Defendants
due process of Law secured to them by the Fourteenth
Amendment to the United States Constitution.
2. These Defendants demur to said accusation upon the
ground that the Statute upon which said accusation is based
and under which Defendants, all being Negroes, were ar
rested and charged, to-wit: Section 26-5301 of the Code
of Georgia, as set out in “ Paragraph 1” above, is uncon
stitutional in that said Statute is unconscionably vague
in that nowhere in said Statute does there appear a
definition of disturbing the public peace or committing any
unlawful act. The absence of definition of these terms in
sufficient specificity denies due process of Law guaranteed
[fol. 4] by the Fourteenth Amendment to the United States
Constitution and the Constitution of the State of Georgia.
3. These Defendants demur to said accusation upon the
ground that the Statute upon which said accusation is based
and under which Defendants, all being Negroes, were ar
rested and charged, to-wit: Section 26-5301 of the Code
of Georgia, as set out in “ Paragraph 1” above, is uncon
4
stitutional as applied to these Defendants to enforce racial
discrimination with respect to municipally owned recrea
tional facilities, in that any Statute so used is unconstitu
tional as applied, because the Fourteenth Amendment to
the United States Constitution requires that no State shall
make any discrimination based on race with respect to
governmentally owned facilities.
4. These Defendants demur to said accusation upon the
ground that the arrest of said Defendants under Section
26-5301 of the Code of Georgia, as set out in “ Paragraph
1” above, was in fact pursuant to the policy, custom and
usage of the State of Georgia, which compels segregation
of races in municipally owned places of public recreation
contrary to the equal protection and due process clauses
of the Fourteenth Amendment to the United States Consti
tution.
5. These Defendants demur to said accusation on the
ground that the Statute upon which said accusation is based
and under which Defendants, all being Negroes, were ar
rested and charged, to-wit: Section 26-5301 of the Code
of Georgia, as set out in “Paragraph 1” above, vests in
said Judge, Justice, Sheriff, Constable, Coroner or any
other peace officer, the untramelled and arbitrary authority
to predetermine the commission or the intent to commit an
offense under said Statute. Defendants under said Statute
are not apprized of what acts or act they are forbidden to
[fol. 5] commit, said determination being left solely to the
discretion of the said peace officer. Said Statute is there
fore so vague, capricious, arbitrary and unreasonable as
to violate the due process clause of the Fourteenth Amend
ment to the United States Constitution.
These Defendants pray that each and all of the fore
going grounds of demurrer be examined into by the Court
and that said accusation be quashed upon each and all of
said grounds.”
The Honorable Columbus E. Alexander, Judge, presiding,
overruled said General Demurrers upon each and every
ground, to which ruling Plaintiffs-in-error excepted, now
except and assign the same as error upon the ground that
it was contrary to Law.
5
2. At the close of the State’s evidence, Plaintiffs-in-error
made the following Motion to Dismiss:
Motion
Mr. Gadsden: I would like to make a Motion for Ac
quittal, Your Honor, based on this Georgia Statute, Sec
tion 26-5301; a Statute which prohibits “ Unlawful Assem
bly” for the purpose of disturbing the public peace. The
State has not established the fact that they assembled
there for the purpose of disturbing the public peace or for
committing any unlawful act; the only evidence in this
case is that they were there for the purpose of playing
basketball, the State’s own witness show that, and it is
not within the purview of this Statute to have a conviction
when it doesn’t meet all of the terms and elements of the
Law. There is no evidence here before this Court and
Jury that the Defendants went, there for the purpose of
disturbing the public peace other than circumstantial evi
dence, and our position is that when circumstantial evi-
[fol. 6] dence is relied upon to convict a person it must
have no other reasonable explanation than the one upon
which the State is relying. Now if the State is basing its
case upon the fact that these Defendants went there for
the purpose of disturbing the public peace the only evi
dence it has to sustain that is the fact that they had on
ordinary clothing, and as far as I can determine from the
evidence here today that is all they have to show an at
tempt to disturb the public peace, and there is no other
offense involved whatsoever. The only evidence before
this Court today is that these Defendants went there to
play basketball and that they played basketball until
stopped by the police officers, and that is the reason why
we are asking this Court to direct a verdict for acquittal
in this case; the State has failed to carry the burden in
that respect.
It is a question of “ Intent” and, certainly, there is no
evidence as to their intent. All of the evidence they have
is circumstantial, and I think that the Law is settled on
the fact that where there is circumstantial evidence, and
when there are two different conclusions, this, certainly,
cannot be used to sustain a conviction and, therefore, we
6
respectfully ask this Court to direct a verdict of acquittal
in this case.
Judge: Motion, for directed verdict overruled.
The Honorable Columbus E. Alexander, Judge, presiding,
overruled said Motion to Dismiss, to which ruling Plain
tiffs-in-error excepted, now except and assign the same as
error upon the ground that it was contrary to Law, and
that the same should have been granted because the evi
dence revealed that no crime had been committed by the
Plaintiff s-in-error.
3. Plaintiffs-in-error, as hereinabove set out, filed Mo
tions of New Trial on the 23rd day of May, 1961, and on the
[fol. 7] 24th day of July, 1961, the Honorable Columbus E.
Alexander, Judge of said Court, overruled said Motions on
each and every ground, therein stated, to which ruling
Plaintiffs-in-error excepted, now except and assign the same
as error upon the ground that it was contrary to Law.
4. The Honorable Columbus E. Alexander, Judge, pre
siding, at the trial of said case, sentenced each Defendant
to pay a fine of $100.00 or serve five months under the
jurisdiction of the State Board of Corrections with the
exception of Defendant, Nathaniel Wright who was sen
tenced to pay a fine of $125.00 or serve six months under
the jurisdiction of the State Board of Corrections, to which
judgment Plaintiffs-in-error excepted, now except and as
sign the same as error upon the ground that it was con
trary to Law.
Plaintiffs-in-error specify, as being material to a clear
understanding of the errors complained of, the following
portions of the record:
1. Accusation Number 21074 together with all entries
thereon together with the pleas of Not Guilty.
2. The verdict of the Jury together with the judgment
and sentence of the Court signed by the Honorable Colum
bus E. Alexander, Judge, then presiding, dated May 23,
1961.
3. General Demurrers filed by Plaintiffs-in-error before
arraignment and before pleading to the accusations, to
gether with the rulings of the Court thereon.
7
4. The Motion to Dismiss submitted at the close of the
State’s evidence and the ruling of Court thereon, as set
out in Ridings of the Court approved by Honorable Colum
bus E. Alexander, Judge, then presiding.
5. Motions for New Trial filed by Plaintiffs-in-error,
[fol. 8] Order continuing said Motion, dated and filed on
the 21st day of June, 1961. An order overruling said Mo
tions for New Trial, dated and filed on the 24th day of
July, 1961, and signed by Honorable Columbus E. Alexan
der, Judge of the City Court of Savannah, Georgia.
6. The Brief of Evidence and Approval of said Brief
of Evidence by Honorable Columbus E. Alexander, Judge,
then presiding, filed on the 24th day of July, 1961.
7. Order permitting consolidation of said cases, signed
by Honorable Columbus E. Alexander, Judge, presiding,
dated and filed on the 17th day of August, 1961.
And Now Comes the Plaintiff s-in-error, within the time
provided by Law and, assigning error on all the rulings
complained of as being contrary to Law, tender this their
Bill of Exceptions and pray that the same be certified as
true and transmitted to the Supreme Court of the State
of Georgia, in order that the alleged errors be considered
and corrected, all as provided by Law.
The Supreme Court of Georgia, and not the Court of
Appeals, has jurisdiction of this Bill of Exceptions, for the
reason that the same involves the constitutionality of a
statute of the State of Georgia.
Plaintiffs-in-error most respectfully submit their Bill of
Exceptions.
/ s / E. H. Gadsden, B. Clarence M ayfield , Attorneys
for Plaintiffs-In-Error, 458y2 West Broad Street,
Savannah, Georgia.
[fol. 9]
J udge ’s Certificate to B ill of1 E xceptions
I do certify that the foregoing Bill of Exceptions is true
and contains all of the evidence and specifies all of the
record material to clear understanding of the errors com
plained of, and The Clerk of the City Court of Savannah,
8
Chatham County, Georgia, is hereby directed to make out
a complete copy of such portions of the record as are
in this Bill of Exceptions specified, and certify them as
such, and cause them to be transmitted to the Present Term
of the Supreme Court of Georgia, in order that the errors
alleged to have been committed may be considered and
corrected.
This 18th day of August, 1961.
/ s / C olumbxjs E. A lexander , Judge, City Court of
Savannah, Chatham County, Georgia.
[fol. 15]
I n th e C ity C ourt of S ava n n a h , Georgia
A ccusation and E ndorsements T hereon
State of Georgia )
County of Chatham )
City of Savannah )
And now on this 28th day of April in the year of our
Lord one thousand nine hundred and sixty-one comes An
drew J. Ryan, Jr., Solicitor General of the Eastern Judicial
Circuit of Georgia, who prosecutes for the State of Georgia,
in the City Court of Savannah, and by accusation made
on oath, and in accordance with the statutes in such cases
made and provided, in the name and behalf of the Citizens
of Georgia, charges and accuses Benjamin Carter, James
W. Thomas, (Gavos M. King), Roseoe White, Charlie L.
Smart and Judson Ford and Nathaniel Wright of the
County of Chatham and State aforesaid with the offense of
a misdemeanor: for that the said Defendants in the County
of Chatham and State of Georgia aforesaid, on the 23rd
day of January in the year of our Lord one thousand nine
hundred and sixty-one. In that the said Defendants did as
semble at Daffin Park for the purpose of disturbing the pub
lic peace and refused to disburse (sic) on being commanded
to do so by Sheriff, Constable, and Peace Officer, to wit:
W. H. Thompson and G. W. Hillis, contrary to the laws of
said State, the good order, peace and dignity thereof.
/ s / A ndrew J. R y a n , J r ., Solicitor General of the
Eastern Judicial Circuit of Georgia.
9
No. 21,074
I n th e C ity C ourt op S avann ah
T erm— M ay , 1961.
V iolation of G eorgia L aws 26-5301 C ode op 1933
a M isdemeanor
[fol. 16]
S tate
vs
N ath an iel W right
C harlie L. S m art
(G aw » M. -K-i&g)
J ames W . T homas
B e n ja m in Carter
J udson F ord
R oscoe W h it e
ACCUSATION FOUND
This 28th day of April, 1961.
Filed in office this 28th day of April, 1961.
J esse W. M oore
Dept. Clerk City Court of Savannah
By A ndrew J. R y a n , Jr,
Solicitor General E. J. C. of Ga.
G. W. H illis
Prosecutor
Witnesses for the State
G. W. H illis
W. H . T piompson
C. C. D ickerson
Carl H ager
10
I n th e C ity Court of S avann ah
P leas op N ot G u ilty— May 18,1961
And now on this 18th day of May, 1961, in Open Court
comes the said Nathaniel Wright, Charlie L. Smart, Roscoe
White, James W. Thomas, Benjamin Carter, Judson Ford,
and waives indictment or presentment by a Grand Jury,
and arraignment and trial by a Petit Jury, and for plea
in this their behalf says they are Not Guilty, and puts
themselves upon the Court.
B. Clarence Mayfield, E. H. Gadsden, Attorneys for
Defendants.
The State says he is guilty and will so prove.
Andrew J. Ryan, Jr., Solicitor General E. J. C. of
Georgia.
[fol. 17]
[fol. 18]
I n th e C it y C ourt of S avann ah
V erdict of th e J ury—May 18, 1961
May 18,1961.
We, the Jury, find the Defendants guilty.
L. L . Black, Foreman.
I n th e C it y C ourt of S avann ah
S entence of th e Court as to C harlie L. S m art , R oscoe
W h it e , J ames W . T h om as , B e n ja m in Carter, J udson
F ord— May 18,1961 I
I find the defendants guilty, whereupon, it is considered,
ordered and adjudged that the said defendants do pay a
fine of $100.00 Each, but if the said defendants fail to pay
the said fine, it is ordered that in lieu thereof they serve
11
Five Months Each under the jurisdiction of the State
Board of Corrections.
This May 18th, 1961.
/ s / C olum bus E. A lexander, Judge, City Court of
Savannah.
I n th e C it y Court of S avann ah
S entence of th e C ourt as to N ath an iel W right
— May 18,1961
I find the defendant Nathaniel Wright, guilty, where
upon, it is considered, ordered and adjudged that the said
defendant do pay a fine of $125.00, hut if the said defendant
fails to pay the said fine, it is ordered that in lieu thereof
he serve Six Months, under the jurisdiction of the State
Board of Corrections.
This May 18th, 1961.
/ s / Colum bus E. A lexander, Judge, City Court of
Savannah.
[fol. 19]
I n the C ity C ourt of S avannah
[Title omitted]
G eneral D emurrers and Order Overruling S ame
—May 18,1961
Now Comes the Defendants in the above named and
stated case and before arraignment and before pleading
to the accusation therein, and demur thereto, and for
grounds of demurrer, say:
1. These Defendants demur to said accusation upon the
ground that the Statute upon which said accusation is
based and under which Defendants, all being Negroes,
were arrested and charged, to-wit: Section 26-5301 of the
Code of Georgia, “ ANY TWO OR MORE PERSONS
WHO SHALL ASSEMBLE FOR THE PURPOSE OF
12
DISTURBING THE PUBLIC PEACE OR COMMITTING
ANY UNLAWFUL ACT, AND SHALL NOT DISPERSE
ON BEING COMMANDED TO DO SO BY A JUDGE,
JUSTICE, SHERIFF, CONSTABLE, CORONER, OR
OTHER PEACE OFFICERS, SHALL BE GUILTY OF
A MISDEMEANOR” , is so vague that Defendants are not
put on notice as to what criminal act they have allegedly
committed, rendering it impossible to answer the charge
or make a legal defense, thus denying to Defendants due
process of law secured to them by the Fourteenth Amend
ment to the United States Constitution.
2. These Defendants demur to said accusation upon the
ground that the . Statute upon which said accusation is
based and under which Defendants, all being negroes, were
arrested and charged, to-wit: Section 26-5301 of the Code
of Georgia, as set out in “ Paragraph 1” above, is uncon
stitutional in that said Statute is unconscionably vague in
that nowhere in said Statute does there appear a definition
of disturbing the public peace or committing any unlawful
[fol. 20] act. The absence of definition of these terms in
sufficient specificity denies due process of law guaranteed
by the Fourteenth Amendment to the United States Con
stitution and the Constitution of the State of Georgia.
3. These Defendants demur to said accusation upon the
ground that the Statute upon which said accusation is based
and under which Defendants, all being Negroes, were ar
rested and charged, to-wit: Section 26-5301 of the Code
of Georgia, as set out in “ Paragraph 1” above, is uncon
stitutional as applied to these Defendants to enforce racial
discrimination with respect to municipally owned recrea
tional facilities, in that any Statute so used is unconstitu
tional as applied, because the Fourteenth Amendment to
the United States Constitution requires that no State shall
make any discrimination based on race with respect to
governmentally owned facilities.
4. These Defendants demur to said accusation upon the
ground that the arrest of said Defendants under Section
26-5301 of the Code of Georgia, as set out in “ Paragraph
1” above, was in fact pursuant to the policy, custom and
usage of the State of Georgia, which compels segregation
13
of races in municipally owned places of public recreation
contrary to the equal protection and due process clauses
of the Fourteenth Amendment to the United States Con
stitution.
5. These Defendants demur to said accusation on the
ground that the Statute upon which said accusation is based
and under which defendants, all being Negroes, were ar
rested and charged, to-wit: Section 26-5301 of the Code
of Georgia, as set out in “ Paragraph 1” above, vests in said
Judge, Justice, Sheriff, Constable, Coroner, or other peace
officers, the untramelled and arbitrary authority to pre
determine the commission or the intent to commit an of
fense under said Statute. Defendants under said Statute
is not apprized of what acts or act they are forbidden to
commit, said determination being left solely to the dis
cretion of the said peace officers. Said Statute is there
fore so vague, capricious, arbitrary and unreasonable as
to violate the due process clause of the Fourteenth Amend-
[fol. 21] ment to the United States Constitution.
These Defendants pray that each and all of the foregoing
grounds of demurrer be examined into by the Court and
that said accusation be quashed upon each and all of said
grounds.
..............................-............... , Attorney for Defendants.
General Demurrer filed in Clerk’s Office this May 18, 1961.
Jeff F. Dickey, Clerk, City Court of Savannah.
ORDER OVERRULING DEMURRERS
May 18, 1961.
The within demurrer is overruled on each and every
ground.
/ s / C olum bus E. A lexander, Judge, City Court of
Savannah.
14
I n th e C ity C ourt op S avann ah
R ulings op th e C ourt
See Brief of Evidence, Page 6—beginning of cross ex
amination of Mr. Hager by Mr. Mayfield.
Mr. Garfunkel: I object to that, Your Honor, there has
been no evidence that there was a request for an arrest.
There was a report made that there were negroes playing
there, but nobody requested the police to make an arrest,
the police just went down there and made an arrest after
wards.
Judge: I think that is the case.
Mr. Mayfield: I would like to show to the Court and
Jury that the policy, pursuant to Mr. Hager’s examination
here, was that they would have been permitted to remain
there had the police officers not arrested them.
Judge: Ask questions following the evidence in the case.
[fol. 22]
I n th e C it y Court op S avann ah
M otion for A cquittal and D enial T hereof
Mr. Gadsden: I would like to make a Motion for ac
quittal, Your Honor, based on this Georgia Statute Section
26-5301; a Statute which prohibits “ Unlawful Assembly”
for the purpose of disturbing the public peace. The State
has not established the fact that they assembled there for
the purpose of disturbing the public peace or for com
mitting any unlawful act; the only evidence in this case
is that they were there for the purpose of playing basket
ball, the State’s own witnesses show that, and it is not
within the preview (sic) of this Statute to have a conviction
when it doesn’t meet all of the terms and elements of the
law. There is no evidence here before this Court and Jury
that the defendants went there for the purpose of disturb
ing the public peace other than circumstantial evidence,
and our position is that when circumstantial evidence is
relied upon to convict a person it must have no other
reasonable explanation than the one upon which the State
is relying. Now if the State is basing its case upon the
15
fact that these defendants went there for the purpose of
disturbing the public peace the only evidence it had to
sustain that is the fact that they had on ordinary clothes,
and the State’s own witnesses have testified to the fact that
they know that people play basketball in their ordinary
[fol, 23] clothing, and as far as I can determine from the
evidence here today that is all they have to show an at
tempt to disturb the public peace, and there is no other
offense involved whatsoever. The only evidence before this
Court today is that these defendants went there to play
basketball and that they played basketball until stopped
by the police officers, and that is the reason why we are
asking this Court to direct a verdict for acquittal in this
case; the State has failed to carry the burden in that re
spect.
It is a question of ‘intent’ and, certainly, there is no
evidence as to their intent. All of the evidence they have
is circumstantial and I think that the law is settled on the
fact that where there is circumstantial evidence, and when
there are two different conclusions, this, certainly, cannot
be used to sustain a conviction and, therefore, we respect
fully ask this Court to direct a verdict of acquittal in this
case.
Mr. Gfarfunkel: Your Honor, Mr. Hager gave a very
good outline of way the playgrounds are being operated in
Savannah, and he stated that in general the playgrounds
were for those up to 16 years in age, however, that they
had no objection to those over 16 years in age playing
when the others are not scheduled to play on the play
grounds, he said that was because they didn’t want to mix
them and he explained why he didn’t want to mix them,
or why they didn’t want to mix them.
He further explained, Your Honor, that at that partic
ular time of day is when the schools do use the playgrounds,
and particularly this playground, with which he happens
to be very familiar because it is only a block away from his
office, in fact, part of it surrounds his office—that there
are two parochial schools within walking distance of this
playground, and that further away is another school, which
sends buses all during the day to bring students to play
on this playground, and that they don’t allow grown people
16
on the playgrounds during those periods—grown people,
regardless of their color, they don’t want on the play
grounds during that time. Of course, at this particular
[fol. 24] moment the children were not there, but mo
mentarily the children would come, they were going to
come definitely, and a lot of them come after school, but
all during school hours, Mr. Hager said that the children
come all during school hours and are supervised by the
teachers from the school.
Now, Your Honor, these defendants were there at a place
and at the time where and when grownups should not have
been on the playground. They are adopting the viewpoint
that they went there solely for the purpose of playing
basketball. The reason they went out there was to create
a disturbance, and they say that ‘the reason you are ar
resting us is not because of this, but because we are
colored’.
They went out there not dressed to play basketball, they
didn’t know the rules of the playground, and that is the
reason why we introduced that evidence, we introduced
that evidence to show ‘intent’ to create a disturbance of
the peace. The police certainly shouldn’t have to wait until
a disturbance is actually created and gets beyond control
before they tell them that they will have to leave, and,
certainly, to nip it in the bud before any difficulty or real
trouble starts, that was the purpose of the Statute.
It is not the fact that they went out there and disturbed
the peace by going out there, but it is the fact that they
went out there for the sole purpose of disturbing the peace,
and I think that all of the evidence shows that that is
what this purpose was. That the police stepped in and
told them to leave, but they continued to stay there after
they told them to leave and continued to play, they con
tinued to remain on the playground the police promptly
arrested them.
Judge: Motion for directed verdict overruled.
17
[fol. 26]
I n th e C it y C ourt of S avann ah
S tate of Georgia
vs.
N ath an iel W right
M otion for N ew T rial , O rder to S h ow C ause and
D enial of M otion
Verdict and judgment for the State at May term, 1961
of City Court on 18th day of May 1961.
The defendant being dissatisfied with the verdict and
judgment in said case, comes during said term of Court,
before the adjournment thereof, and within 10 days from
said trial, and moves the court for a new trial upon the
following grounds to wit:
1. Because the verdict is contrary to evidence and with
out evidence to support it.
2. Because the verdict is decidedly and strongly against
the weight of evidence.
3. Because the verdict is contrary to law and the prin
ciples of justice and equity.
4. Because the Statute upon which said verdict is based
is so vague that the defendants were not put on notice as
to what" criminal act they had allegedly committed, thus
denying to defendants due process of law secured to them
by the First and Fourteenth Amendments to the United
States Constitution.
5. Because the Statute upon which said verdict is based
is unconstitutional in that said Statute is unconscionably
vague in that nowhere in said Statute does there appear a
definition of disturbing the public peace or committing any
unlawful act. The absence of definition of these terms in
sufficient specificity denies due process of law guaranteed
18
by the Fourteenth Amendment to the United States Con
stitution and the Constitution of the State of Georgia.
6. Because the Statute upon which verdict is based vest
said Judge, Justice, Sheriff, Constable, Coroner or other
peace officers the untramelled and arbitrary authority to
predetermine the commission of the intent to commit an
offense under said Statute. Defendants under said Statute
is not apprized of what act or acts they are forbidden to
commit, said determination being left solely to the discre-
[fol. 27] tion of the said Peace Officer. Said Statute is
therefore so vague, capricious, arbitrary and unreasonable
as to violate the due process clause of the Fourteenth
Amendment to the Constitution of the United States.
Whereupon he prays that these, his grounds for a new
trial, be inquired of by the court, and that a new trial be
granted him.
B. Clarence Mayfield, E. H. Gadsden, Atty’s for
Movant.
Read and consider. It is ordered that the State of
Georgia show cause before me, at 3 :00 o ’clock on the 23rd
day of June, 1961, why the foregoing motion should not
be granted.
It is further ordered that the State of Georgia be served
with a copy of this motion and order; and that this order
act as supersedeas until the further order of the court, and
upon the defendant giving a good and sufficient bond in the
amount of $80.00.
If for any reason said motion is not heard and deter
mined at the time and place above fixed, it is ordered that
the same shall be heard and determined at such time and
place in vacation as counsel may agree upon and upon
failure to agree, then at such time and place as the presid
ing judge may fix on the application of either party, of
which time and place and opposite party shall have at
least five days’ notice.
I f for any reason this motion is not heard and determined
before the beginning of the next term of this court, then
the same shall stand on the docket until heard and deter
mined at said term or thereafter.
19
It is further ordered that movant have, until hearing,
whenever it may be, to prepare and present for approval a
brief of the evidence in said case, and the presiding judge
may enter his approval thereon at any time, either in term
or vacation, and if the hearing of the motion shall be in
vacation, and the brief of evidence has not been filed in
the clerk’s office at any time within ten days after motion
is heard and determined.
[fol. 28] It appearing that it is impossible to make out
and complete a brief of the testimony on said case before
adjournment of court; it is ordered by the court that said
motion be heard and determined in vacation and that
movant may amend said motion at any time before the
final hearing.
This 23rd day of May, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
Georgia )
Chatham County )
S tate of Georgia
vs.
N ath an iel W eight
Due and legal service of the within and foregoing Motion
for New Trial is hereby acknowledged, copy received.
This 22nd day of May, 1961.
Andrew J. Ryan, Jr., Solicitor General for the East
ern Judicial District of the State of Georgia.
Motion for New Trial, filed in office this 23rd day of
May, 1961.
Jeff F. Dickey, Clerk, City Court of Savannah.
20
Order Continuing Hearing
The within Motion for New Trial is hereby continued to
July 21st, 1961 at 3 :00 P.M. All rights of movant are
hereby reserved.
In Open Court, this 23rd day of June, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
[fol. 29]
Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled upon
each and all of the grounds thereof.
In Open Court, this July 24th, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
[fol. 30]
I n th e Cit y Court op S avann ah
S tate oe G eorgia
vs.
Charles L. S mart
M otion for N ew T rial , Order to S h o w Cause and
D en ia l of M otion
Verdict and Judgment for the State at May Term, 1961,
of City Court on 18th day of May, 1961.
The defendant being dissatisfied with the verdict and
judgment in said case, comes during said term of Court,
before the adjournment thereof, and within 10 days from
said trial, and moves the court for a new trial upon the
following grounds to wit:
1st. Because the verdict is contrary to evidence and
without evidence to support it.
21
2nd. Because the verdict is decidedly and strongly against
the weight of evidence.
3rd. Because the verdict is contrary to law and the
principles of justice and equity.
4th. Because the Statute upon which said verdict is based
is so vague that the defendants were not put on notice
as to what criminal act they had allegedly committed, thus
denying to defendants due process of law secured to them
by the First and Fourteenth Amendments to the United
States Constitution.
5th. Because the Statute upon which said verdict is based
is unconstitutional in that said Statute is unconscionably
vague in that nowhere in said Statute does there appear
a definition of disturbing the public peace or committing
any unlawful act. The absence of definition of these terms
in sufficient specificity denies the process of law guaranteed
by the Fourteenth Amendment to the United States Con
stitution and the Constitution of the State of Georgia.
6th. Because the Statute upon which verdict is based
vest said Judge, Justice, Sheriff, Constable, Coroner or
other peace officers the untrammeled and arbitrary author
ity to predetermine the commission of the intent to commit
an offense under said Statute. Defendants under said Stat
ute is not apprized of what act or acts they are forbidden
to commit, said termination being left solely to the dis-
ffol. 31] cretion of the said Peace Officer. Said Statute
is therefore so vague, capricious, arbitrary and unreason
able as to violate the due process clause of the Fourteenth
Amendment to the Constitution of the United States.
Whereupon, he prays that these, his grounds for a new
trial, be inquired of by the court, and that a new trial be
granted him.
B. Clarence Mayfield, E. H. Gadsden, Attorneys for
Movant.
Read and Considered. It is ordered that the State of
Georgia show cause before me, at 3 o’clock on the 23rd day
of June, 1961, why the foregoing motion should not be
granted.
22
It is further ordered that the State of Georgia be served
with a copy of this motion and order; and that this order
act as a supersedeas until the further order of the court,
and upon the defendant giving a good and sufficient bond
in the amount of $80.00.
I f for any reason said motion is not heard and determined
at the time and place above fixed, it is ordered that the
same shall be heard and determined at such time and place
in vacation as counsel may agree upon, and upon a failure
to agree, then at such time and place as the presiding
judge may fix on the application of either party, of which
time and place the opposite party shall have at least five
days’ notice.
If for any reason this motion is not heard and determined
before the beginning of the next term of this court, then
the same shall stand on the docket until heard and deter
mined at said term or thereafter.
It is further ordered that movant have, until hearing,
whenever it may be, to prepare and present for approval
a brief of the evidence in said case, and the presiding
judge may enter his approval thereon at any time, either
in term or vacation, and if the hearing on the motion shall
be in vacation, and the brief of the evidence has not been
filed in the clerk’s office at any time within ten days after
motion is heard and determined.
[fol. 32] It appearing that it is impossible to make out and
complete a brief of the testimony on said case before ad
journment of court; it is ordered by the court that said
motion be heard and determined in vacation and that
movant may amend said motion at any time before the
final hearing.
This 23rd day of May, 1961.
/ s / Colum bus E. A lexander, Judge City Court of
Savannah.
23
Acknowledgment of Service
State of Georgia )
County of Chatham )
S tate of Georgia
vs.
Charles L. S mart
Due and Legal service of the within and foregoing Motion
for New Trial is hereby acknowledged, copy received. This
22nd day of May, 1961.
/ s / Andrew J. Ryan, Jr., Solicitor General for the
Eastern Judicial District of the State of Georgia.
Motion for New Trial as to Charles L. Smart filed in
Clerk’s Office this May 23, 1961.
Jeff F. Dickey, Clerk City Court of Savannah.
[fol. 33]
Order Continuing Hearing on Motion for New Trial
The within Motion for New Trial is hereby continued to
July 21, 1961, at 3 :00 P.M. All rights of movant are hereby
reserved.
In Open Court this June 23, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
Order of Court Overruling Motion for New Trial
The within Motion for New Trial is hereby overruled
upon each and all of the grounds thereof.
In Open Court this July 24, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
24
[fol. 34]
I n th e C ity Coubt of S avann ah
S tate of Georgia
vs.
R oscoe W h ite
M otion fob N ew T r ia l , O rdeb to S h ow Cause and
D en ial of M otion
Verdict and Judgment for the State at May Term, 1961, of
City Court on 18th day of May, 1961.
The defendant being dissatisfied with the verdict and
judgment in said case, comes during said term of Court,
before the adjournment thereof, and within 10 days from
said trial, and moves the court for a new trial upon the
following grounds, towit:
1. Because the verdict is contrary to evidence and with
out evidence to support it.
2. Because the verdict is decidedly and strongly against
the weight of evidence.
3. Because the verdict is contrary to law and the princi
ples of justice and equity.
4. Because the Statute upon which said verdict is based
is so vague that the defendants were not put on notice as
to what criminal act they had allegedly committed, thus
denying to defendants due process of law secured to them
by the First and Fourteenth Amendments to the United
States Constitution.
5. Because the Statute upon which said verdict is based
is unconstitutional in that said Statute is unconscionably
vague in that nowhere in said Statute does there appear
a definition of disturbing the public peace or committing
any unlawful act. The absence of definition of these terms
in sufficient specificity denies due process of law guaran
25
teed by the Fourteenth Amendment to the United States
Constitution and the Constitution of the State of Georgia.
6. Because the Statute upon which verdict is based vest
said Judge, Justice, Sheriff, Constable, Coroner or other
peace officers and untrammeled and arbitrary authority to
predetermine the commission of the intent to commit an
offense under said Statute. Defendants under said Statute
is not apprized of what acts or act they are forbidden to
commit, said determination being left solely to the dis
cretion of the said Peace Officer. Said Statute is therefore
[fol. 35] so vague, capricious, arbitrary and unreasonable
as to violate the due process clause of the Fourteenth
Amendment to the Constitution of the United States.
Whereupon, he prays that these, his grounds for a new
trial, be inquired of by the court, and that a new trial be
granted him.
B. Clarence Mayfield, E. H. Gadsen, Attorneys for
Movant.
Bead and Considered. It is ordered that the State of
Georgia show cause before me, at 3 o’clock on the 23rd day
of June, 1961, why the foregoing motion should not be
granted.
It is further ordered that the State of Georgia be served
with a copy of this motion and order; and that this order
act as a supersedeas until the further order of the court,
and upon the defendant giving a good and sufficient bond
in the amount of $80.00.
If for any reason said motion is not heard and determined
at the time and place above fixed, it is ordered that the
same shall be heard and determined at such time and place
in vacation as counsel may agree upon, and upon failure
to agree, then at such time and place as the presiding judge
may fix on the application of either party, of which time
and place the opposite party shall have at least five days’
notice.
If for any reason this motion is not heard and determined
before the beginning of the next term of this court, then
26
the same shall stand on the docket until heard and deter
mined at said term or thereafter.
It is further ordered that movant have, until hearing, when
ever it may be, to prepare and present for approval a
brief of the evidence in said case, and the presiding judge
may enter his approval thereon at any time, either in term
or vacation, and if the hearing of the motion shall be in
vacation, and the brief of evidence has not been filed in
the clerk’s office at any time within ten days after motion
is heard and determined.
It appearing that it is impossible to make out and complete
a brief of the testimony on said case before adjournment of
court; it is ordered by the court that said motion be heard
and determined in vacation and that movant may amend
said motion at any time before the final hearing.
[fol. 36] This 23rd day of May, 1961.
/ s / Columbus E. Alexander, Judge City Court of
Savannah.
Acknowledgment of Service
State of Georgia )
County of Chatham )
S tate of G eorgia
vs.
R oscoe W h ite
Due and legal service of the within and foregoing motion
for new trial is hereby acknowledged, copy received. This
22 day of May, 1961.
/ s / A ndrew J . R y a n , J r ., Solicitor General for the
Eastern Judicial District of the State of Georgia,
Motion for new trial as to Roscoe White filed in Clerk’s
Office this 23rd day of May, 1961.
Jeff F. Dickey, Clerk, City Court of Savannah
27
Order Continuing Hearing
The within Motion for New Trial is hereby continued to
July 21, 1961, at 3 :00 P.M. All rights of movant are hereby
reserved.
In Open Court, this 23rd day of June, 1961.
Columbus E. Alexander, Judge, City Court of Sa
vannah.
Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled upon
each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.
Columbus E. Alexander, Judge, City Court of Sa
vannah.
[fol. 38]
In th e C ity C ourt of S avan n ah
[fol. 37]
S tate of Georgia
v s .
J ames W . T homas
M otion for N ew T rial , Order to S h o w Cause and
D enial of M otion
Verdict and Judgment for the State at May Term, 1961,
of City Court on 18th day of May, 1961.
The defendant being dissatisfied with the verdict and
judgment in said case, comes during said term of Court,
before the adjournment thereof, and within 10 days from
said trial, and moves the court for a new trial upon the
following grounds, towit:
1st. Because the verdict is contrary to evidence and
without evidence to support it.
28
2nd. Because the verdict is decidedly and strongly
against the weight of evidence.
3rd. Because the verdict is contrary to law and the
principles of justice and equity.
4th. Because the Statute upon which said verdict is
based is so vague that the defendants were not put on
notice as to what criminal act they had allegedly committed,
thus denying to defendants due process of law secured to
them by the First and Fourteenth Amendments to the
United States Constitution.
5th. Because the Statute upon which said verdict is
based is unconstitutional in that said Statute is uncon
scionably vague in that nowhere in said Statute does there
appear a definition of disturbing the public peace or com
mitting any unlawful act. The absence of definition of
these terms in sufficient specificity denies due process of
law guaranteed by the Fourteenth Amendment to the
United States Constitution and the Constitution of the
State of Georgia.
6th. Because the Statute upon which verdict is based
vest said Judge, Justice, Sheriff, Constable, Coroner or
other peace officers the untrammeled and arbitrary authority
to predetermine the commission of the intent to commit
an offense under said Statute. Defendants under said
Statute is not apprized of what act or acts they are for
bidden to commit, said determination being left solely to
the discretion of the said Peace Officer. Said Statute is
[fob 39] therefore so vague, capricious, arbitrary and un
reasonable as to violate the due process clause of the
Fourteenth Amendment to the Constitution of the United
States.
Whereupon, he prays that these, his grounds for a new
trial, be inquired of by the Court, and that a new trial be
granted him.
/ s / B. Clarence M ayfield , E. H. Gadsden, Attor
neys for Movant.
29
Bead and Considered. It is ordered that the State of
Georgia show cause before me, at 3 o’clock on the 23rd day
of June, 1961, why the foregoing motion should not be
granted.
It is further ordered that the State of Georgia be served
with a copy of this motion and order; and that this order
act as a supersedeas until the further order of the court,
and upon the defendant giving a good and sufficient bond
in the amount of $80.00.
If for any reason said motion is not heard and determined
at the time and place above fixed, it is ordered that the
same shall be heard and determined at such time and place
in vacation as counsel may agree upon, and upon failure to
agree, then at such time and place as the presiding judge
may fix on the application of either party, of which time
and place the opposite party shall have at least five days’
notice.
If for any reason this motion is not heard and determined
before the beginning of the next term of this court, then
the same shall stand on the docket until heard and deter
mined at said term or thereafter.
It is further ordered that movant have, until hearing,
whenever it may be, to prepare and present for approval
a brief of the evidence in said case, and the presiding
judge may enter his approval thereon at any time, either
in term or vacation, and if the hearing of the motion shall
be in vacation, and the brief of evidence has not been filed
in the Clerk’s office at any time within ten days after motion
is heard and determined.
[fol. 40] It appearing that it is impossible to make out
and complete a brief of the testimony on said case before
adjournment of court; it is ordered by the court that said
motion be heard and determined in vacation and that
movant may amend said motion at any time before the
final hearing.
This 23rd day of May, 1961.
/ s / C olumbus E. A lexandeb, Judge, C.C.S.
30
State of Georgia )
County of Chatham )
S tate of Georgia
vs.
J ames W . T hom as
Due and legal service of the within and foregoing motion
for New Trial is hereby acknowledged, copy received.
This 22nd day of May, 1961.
/ s / Andrew J. Ryan, Jr., Solicitor General for the
Eastern Judicial District of the State of Georgia.
Chatham County Courthouse
Room 310
Savannah, Georgia
Motion for a New Trial as to James W. Thomas, filed
in Clerk’s office this 23rd day of May, 1961.
Jeff F. Dickey, Clerk, City Court of Savannah.
[fol. 41]
Order Continuing Hearings
The within Motion for New Trial is hereby continued to
July 21, 1961, at 3 :00 P.M. All rights of movant are hereby
reserved.
In Open Court, this 23rd day of June, 1961.
Columbus E. Alexander, Judge, C.C.S.
Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled
upon each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.
Columbus E. Alexander, Judge, City Court Savan
nah.
31
I n th e Cit y C ourt of S avann ah
[fol. 42]
S tate of Georgia
vs.
B e n ja m in Carter
M otion for N ew T rial , Order to S h o w Cause
and D en ial of M otion
Verdict and judgment for the State at May term, 1961
of City Court on 18th day of May, 1961.
The Defendant being dissatisfied with the verdict and
judgment in said case, comes during said term of Court,
before the adjournment thereof, and within 10 days from
said trial, and moves the court for a new trial upon the
following grounds to w it:
1. Because the verdict is contrary to evidence and with
out evidence to support it.
2. Because the verdict is decidedly and strongly against
the weight of evidence.
3. Because the verdict is contrary to law and the prin
ciples of justice and equity.
4. Because the Statute upon which said verdict is based
is so vague that the defendants were not put on notice as
to what criminal act they had allegedly committed, thus
denying to defendants due process of law secured to them
by the First and Fourteenth Amendments to the United
States Constitution.
5. Because the Statute upon which said verdict is based
is unconstitutional in that said Statute is unconscionably
vague in that nowhere in said statute does there appear a
definition of disturbing the public peace or committing any
unlawful act. The absence of definition of these terms in
sufficient specificity denies due process of law guaranteed
32
by the Fourteenth Amendment to the United States Con
stitution and the Constitution of the State of Georgia.
6. Because the Statute upon which verdict is based vest
said Judge, Justice, Sheriff, Constable, Coroner or other
peace officers the untrammeled and arbitrary authority to
predetermine the commission of the intent to commit an
offense under said Statute. Defendants under said Statute
is not apprized of what act or acts they are forbidden to
commit, said determination being' left solely to the discre
tion of the said Peace Officer. Said Statute is therefore
so vague, capricious, arbitrary and unreasonable as to vio
late the due process clause of the Fourteenth Amendment
to the Constitution of the United States.
[fol. 43] Whereupon he prays that these, his grounds for
a new trial, be inquired of by the court, and that a new
trial be granted him.
B. Clarence Mayfield, E. H. Gadsden, Atty’s for
Movant.
Bead and consider. It is ordered that the State of
Georgia show cause before me, at 3 :00 o ’clock on the 23rd
day of June, 1961, why the foregoing motion should not
be granted.
It is further ordered that the State of Georgia be served
with a copy of this motion and order; and that this order
act as supersedeas until the further order of the court, and
upon the defendant giving a good and sufficient bond in
the amount of $80.00.
If for any reason said motion is not heard and determined
at the time and place above fixed, it is ordered that the
same shall be heard and determined at such time and place
in vacation as counsel may agree upon, and upon failure
to agree, then at such time and place as the presiding judge
may fix on the application of either party, of which time
and place the opposite party shall have at least five days
notice.
If for any reason this motion is not heard and determined
before the beginning of the next term of this court, then
33
the same shall stand on the docket until heard and de
termined at said term or thereafter.
It is further ordered that movant have, until hearing,
whenever it may be, to prepare and present for approval
a brief of the evidence in said case, and the presiding
judge may enter his approval thereon at any time, either
in term or vacation, and if the hearing of the motion shall
be in vacation, and the brief of evidence has not been filed
in the clerk’s office at any time within ten days after motion
is heard and determined.
[fol. 44] It appearing that it is impossible to make out
and complete a brief of the testimony on said case before
adjournment of court; it is ordered by the court that said
motion be heard and determined in vacation and that mov
ant may amend said motion at any time before the final
hearing.
This 23rd day of May, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
State of Georgia )
County of Chatham )
S tate oe G eorgia
vs.
B e n ja m in C arter
Due and legal service of the within and foregoing Motion
for New Trial is hereby acknowledged, copy received.
This 22nd day of May, 1961.
Andrew J. Ryan, Jr., Solicitor General for the
Eastern Judicial District of the State of Georgia.
34
Chatham County Courthouse
Room 301
Savannah, Georgia
Motion for New Trial, filed in Office this 23rd day of
May, 1961.
Jeff F. Dickey, Clerk, City Court of Savannah.
[fol. 45]
Order Continuing Hearing
The within Motion for New Trial is hereby continued to
July 21, 1961 at 3 :00 P.M. All rights of movant are hereby
reserved.
In Open Court, this 23rd day of June, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled
upon each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
[fol. 46]
I n th e C it y C ourt oe S avann ah
S tate o f Georgia
v s .
J udson F ord
M otion eor N ew T rial , Order to S h o w C ause
and D en ia l oe M otion
Verdict and judgment for the State at May term, 1961
of City Court on 18th day of May, 1961.
35
The defendant being dissatisfied with the verdict and
judgment in said case, comes during said term of Court,
before the adjournment thereof, and within 10 days from
said trial, and moves the court for a new trial upon the
following grounds to w it:
1. Because the verdict is contrary to evidence and with
out evidence to support it.
2. Because the verdict is decidedly and strongly against
the weight of evidence.
3. Because the verdict is contrary to law and the prin
ciples of justice and equity.
4. Because the Statute upon which said verdict is based
is so vague that the defendants were not put on notice as
to what criminal act they had allegedly committed, thus
denying to defendants due process of law secured to them
by the First and Fourteenth Amendments to the United
States Constitution.
5. Because the Statute upon which said verdict is based
is unconstitutional in that said Statute is unconscionably
vague in that nowhere in said Statute does there appear a
definition of disturbing the public peace or committing
any unlawful act. The absence of definition of these terms
in sufficient specificity denies due process of law guaranteed
by the Fourteenth Amendment to the United States Con
stitution and the Constitution of the State of Georgia.
6. Because the Statute upon which verdict is based vest
said Judge, Justice, Sheriff, Constable, Coroner or other
peace officers the untrammeled and arbitrary authority to
predetermine the commission of the intent to commit an
offense under said Statute. Defendants under said Statute
is not apprized of what act or acts they are forbidden to
commit, said determination being left solely to the discre
tion of the said Peace Officer. Said Statute is therefore so
vague, capricious, arbitrary and unreasonable as to vio
late the due process clause of the Fourteenth Amendment
to the Constitution of the United States.
36
[fol. 47] Whereupon he prays that these, his grounds for
a new trial, be inquired of by the court, and that a newr
trial be granted him.
B. Clarence Mayfield, E. H. Gadsden, Atty’s for
Movant.
Bead and consider. It is ordered that the State of
Georgia show cause before me, at 3 :00 o’clock on the 23rd
day of June, 1961, why the foregoing motion should not
be granted.
It is further ordered that the State of Georgia be served
with a copy of this motion and order; and that this order
act as supersedeas until the further order of the court,
and upon the defendant giving a good and sufficient bond
in the amount of $80.00.
If for any reason said motion is not heard and determined
at the time and place above fixed, it is ordered that the
same shall be heard and determined at such time and place
in vacation as counsel may agree upon, and upon failure
to agree, then at such time and place as the presiding
judge may fix on the application of either party, of which
time and place the opposite party shall have at least five
days notice.
I f for any reason this motion is not heard and determined
before the beginning of the next term of this court, then
the same shall stand on the docket until heard and de
termined at said term or thereafter.
It is further ordered that movant have, until hearing,
whenever it may be, to prepare and present for approval a
brief of the evidence in said case, and the presiding judge
may enter his approval thereon at any time, either in term
or vacation, and if the hearing of the motion shall be in
vacation, and the brief of evidence has not been filed in
the clerk’s office at any time within ten days after motion
is heard and determined.
It appearing that it is impossible to make out and com
plete a brief of the testimony on said case before adjourn
37
ment of court; it is ordered by the court that said motion
be heard and determined in vacation and that movant may
amend said motion at any time before the final hearing.
[fol. 48] This 23rd day of May, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
Chatham County )
Georgia )
S tate of G eorgia
vs.
Junsorr F ord
Due and legal service of the within and foregoing Motion
for New Trial is hereby acknowledged, copy received.
This 12th day of May, 1961.
Andrew Ryan, Jr., Solicitor General for the Eastern
Judicial District of the State of Georgia.
Chatham County Courthouse
Room 301
Savannah, Georgia
Motion for New Trial, filed in Clerk’s office this 23rd
day of May, 1961.
Jeff F. Dickey, Clerk, City Court of Savannah.
[fol. 49]
Order Continuing Hearing
The within Motion for New Trial is hereby continued to
July 21st, 1961 at 3:00 P.M. All rights of movant are
hereby reserved.
In Open Court, this 23rd day of June, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
38
Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled
upon each and all of the grounds thereof.
In Open Court, this July 24th, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
[fol. 50]
I n th e C ity Court of S avannah
Georgia )
Chatham County )
Criminal No. 21074
S tate of G eorgia, Plaintiff,
vs.
N ath an iel W rig h t , C harles L. S m art , R oscoe W h it e ,
J as. W . T h om as , B e n ja m in C arter, J udson F ord,
Defendants.
Violating Section 26-5301 Code of Georgia— 1933
Brief of the Evidence
Tried in the City Court of Savannah, Chatham County,
Georgia, on May 18th, 1961, before the Honorable Colum
bus E. Alexander, Judge of said Court, with a jury.
A ppearan ces :
Sylvan A. Garfunkel, Esq., Asst. Solicitor General; Court
House, Savannah, Ga., for the State.
E. A. Gadsden, Esq., B. C. Mayfield, Esq., Attorneys at
law, Savannah, Georgia, for the Defendants.
And Thereupon G. H. T hom pson duly sworn, testified:
My name is G. H. Thompson. I am a member of the
Savannah Police Department, and I was a member of the
39
Savannah Police Department on or around January 23,
1961, and I was on duty around two o’clock, here in
Savannah, Chatham County, Georgia. A white lady came up
and told us about certain people being in Daffin Park and
asked us certain questions about them—we were, at that
time, at about the eastern end of Grayson Stadium, which
is situated at the end of the Daffin Park area—-Daffin Park
consists of an area of about 50 acres and it is a recreational
park. This white lady came up and gave us certain in
formation and asked us certain questions about it, and we
made an investigation at a basket ball court, in Daffin Park,
which was about 500 feet west of where we were at the
time we had our conversation with this white lady—Officer
[fol. 51] G. W. Hillis was with me at the time, and as a
result of the conversation with this white lady we rode over
to this Basket Ball Court to investigate, and when we
arrived at this Basket Ball Court we found around seven
colored boys playing basket ball there on the Basket Ball
Court.
Q. Are they here today!
A. Yes sir.
Q. Are some of them here?
A. Yes sir.
Q. Where are they?
A. Well, this one with the red stripe tie, that’s one of
them, and the other, sitting beside him on the right, and
the one with the light shirt. That’s the only three I recog
nize.
Brief continues:
As to their dress, they were pretty well dressed at that
time; some of them had on dress shirts, some of them had
on coats—not a dress coat, but a jacket. I didn’t notice
what particular type shoes they had on, as far as I know
they didn’t have ‘tennis shoes’ on. I am familiar with the
type of shoes that people wear when they play basket ball,
they didn’t have that type of shoes on as well as I remem
ber.
I think that these defendants ranged in age from 23 to
32.
40
There is a school nearby this Basket Ball Court, it is
located at Washington Avenue and Bee Road, I mean, at
Washington Avenue and Waters. There is another school
on 44th Street—there are two schools nearby; I believe that
they are both ‘grammar’ schools. I patrol that area and
the children from these schools play there, they come there
everyday I believe, I believe they come there every after
noon when they get out of school, and I believe they come
there during recess. The school, I believe, gets out about
2 :30 in the afternoon, and this was around 2 :00 o’clock.
When I came Tip to these defendants I asked them to
leave; I spoke to all of them as a group when I drove up
there, and I asked them to leave twice, but they did not
leave at that time. I gave them an opportunity to leave.
One of the, I don’t know which one it was, came up and
asked me who gave me orders to come out there and by
what authority I came out there, and I told him that I didn’t
need any orders to come out there, I believe the one that
[fol. 52] asked me that is the third one there, sitting at the
table in the Court Room here, the one there with the coat
on, with the red button on it. The children from the schools,
would have been out there shortly after that. The purpose
of asking them to leave was to keep down trouble, which
looked like to me might start—there were five or six cars
driving around the park at the time, white people. They left
only after they were put under arrest, they were put under
arrest approximately 5 to 10 minutes after I told them to
leave,— Officer Hillis is the one who put them under arrest
—we called the police cruiser and it came and we put them
in that. It seemed like to me that they were welcoming the
arrests, because all of them piled into the car, Officer Hil
lis’s car, at the time, and he had to stop them—Officer
Hillis’ car did not carry any of them, the cruiser carried
them in, they waited in the car until the cruiser came, all
seven of them, it was seven of them. Officer Dickerson came
up, he was riding as Street Sergeant at the time, and I
reported to him what had happened.
Cross Examination of Officer Thompson by Mr. Gadsden:
This matter first came to my attention when this white
lady had this conversation with us, the lady who told us
41
that colored people were playing in the Basket Ball Court
down there at Baffin Park, and that is the reason I went
there, because some colored people were playing in the
park. I did not ask this white lady how old these people
were. As soon as I found out these were colored people
I immediately went there.
I have seen people play basket ball without uniforms on.
I hadn’t paid too much attention to basketball, so I don’t
know if a man 32 years old would play that game or not,
but it is possible that a person who is 32 could be playing
basket ball, and it is possible for a person of twenty-three
to be playing basketball too. Under ordinary circumstances
I would not arrest boys for playing basketball in a public
park. I have never made previous arrests in Baffin Park
because people played basketball there, I don’t have any
knowledge myself if any certain age group is limited to
any particular basketball Court, I don’t know the rules of
the City Recreational Department.
[fol. 53] I arrested these people for playing basket ball in
B affin Park. One reason was because they were negroes.
I observed the conduct of these people, when they were on
the basketball Court and they were doing nothing besides
playing basket ball, they were just normally playing basket
ball, and none of the children from the schools were there
at that particular time.
I made these arrests around 2 :00 o’clock, and the schools
let out around 2:30 o’clock, and it would have been at least
30 minutes before any children would have been in this
particular area.
This basketball Court is approximately 100 yards from
Waters Avenue, and there is a north-south driveway, which
goes right by the court, it circles the park—the driveway
is about 15 yards out from the basket ball court, it runs on
each side of it, I believe that it is Waring Drive that runs
in from Waters Avenue and these driveways runs from
Waring Drive. There were cars, riding around on these
driveways, at least five or six cars, I wouldn t say that that
was unusual traffic for that time of day.
When I asked them to leave is when that party asked me
as to what authority I was asking them to leave. I believe
42
that they asked Officer Hillis for his badge number. I don’t
think that it is unusual for one to inquire ‘why’ they are
being arrested.
Redirect Examination by Mr. Garfunkel:
I believe that most of them had on dress pants, as far as
I can remember. I have seen people playing basket ball,
but I have never seen them come out dressed like that to
play basketball. There have been colored children in Daffin
Park, but I did not arrest those children, but I arrested
these people because we were afraid of what was going to
happen. Colored children have played in Daffin Park, and
they have fished there.
Recross Examination by Mr. Gadsden:
I have observed colored children playing in Daffin Park,
but not playing basketball, but I have observed them play
ing and fishing, we had gotten previous calls that they
were fishing in there and such, but not playing basketball.
I have never made an arrest in Daffin Park.
[fol. 54] sometimes they do and sometimes they don’t. It is
possible to play basketball in street clothes.
Redirect Examination by Mr. Garfunkel:
If I wanted to play basketball I would not go out there
dressed up, not the way they were dressed.
Carl H ager duly sw orn , testified :
Direct Examination by Mr. Garfunkel:
My name is Carl Hager, I am Superintendent of the
Recreational Department of the City of Savannah. As
superintendent I am over all of the playgrounds in the
City of Savannah, Chatham County, Georgia; that includes
Daffin Park and all the other parks that have playgrounds.
These playgrounds are mostly in neighborhood areas.
There are neighborhood areas where colored families live,
and neighborhood areas where white people live, we try to
43
establish them in that manner, and, then, there are certain
areas where they are mixed to a certain extent. We have
a playground in the Park Extension, and that is a mixed
areas for white and colored—a white section and a colored
section—it is mostly white, but there are several colored
sections within several blocks, and they are much closer
now than they use to be. Wells Park is what we call a
border-area and that is a mixed area— one side is colored
and one side is white. The Baffin Park area, mostly around
that area is mostly white. It has occurred, from time to
time, that colored children would play in the Baffin Park
area and in the Park Extension area, but no action had
been taken, because it is legal, it is allowed, and nobody
has said anything about it. I am familiar with the Baffin
Park playground area, in fact, the office of the Recreational
Bepartment is in Baffin Park. That basket ball court is
about a block from the office. I was advised that an arrest
had been made, but they had all gone when I was told about
it and I did know why the arrests had been made. The
playground areas are basically for young children, say
15 to 16 and under, along that age group, we give priority
to the playground to the younger children over the grown
ups, it made no difference as to whether they were white or
colored. Anytime that we requested anyone to do something
[fol. 55] and they refused we would ask the police to stop
in, if we would ask them to leave and they did not we would
ask the police to step in. We have had reports that colored
children have played in the Park Extension, but they were
never arrested or told to leave.
We have had grown people to come out to Baffin Park
and play soft-ball; we have soft-ball diamonds and also
younger people play on them, but we try to regulate the
times for playing on the diamonds so that there will not be
a conflict between the older people and the younger ones,
and we issue permits in all cases where we think there will
be conflict, we try to regulate them. We do not have the
Tennis Courts regulated at the present time, they are now
on first come first serve basis, but we plan to regulate these.
44
Cross Examination by Mr. Mayfield:
Q. Mr. Hager, I would like to ask you if your office made
the request for the arrest on February 21st?
Objection to above by Mr. Garfunkel—see rulings of the
Court, page 1, top of page.
Brief continues:
There are no signs posted in conspicuous places around
the park defining what hours certain age groups were to
use particular areas of the park, but we do have signs say
ing that you do have to request permits from the office
before using certain facilities, in other words, wTe designate
the time ourselves as to what is to be carried out in those
areas. I testified that if there was a conflict between the
younger people and the older people using the park facili
ties the preference would be for the younger people to use
them, but we have no objections to older people using the
facilities if there are no younger people present or if they
are not scheduled to be used by the younger people.
There are about 7 parks in the City in negro areas and
about 14 in white areas, and that changes during the season
of a year according to the leadership, and I might explain
that we could set apart the one that is under leadership;
we have areas that have equipment, but do not have leaders
and we do not consider those play grounds, it is only those
where we have paid leadership, like tennis courts, and at
Baffin Park and at Cann Park, where we pay an individual
[fol. 56] to open and close the playgrounds and regulate the
use of them.
The parks in white areas are located as follows:
‘Savannah Gardens’— Pensylvania near Jones; ‘Avon
dale’— Texas Avenue and ‘Victory Heights’— east 42nd
Street, on the other side of Skidawav; ‘Forrest Hills’—near
DeRenne Ave. and Skidaway Road; ‘Hull’ ; 54th and At
lantic Avenue; ‘Baffin Park’—Waters and Victory Drive;
‘Garden Homes’—near Park Avenue and Cedar; ‘Live Oak’
— Park Avenue and Live Oak; Bavant’—Perry and Lincoln;
‘Wells’—38th and Montgomery; ‘Forsyth’— Gaston and
Bull; ‘Fred Wessels’—Fred Wessels Housing Units.
45
The parks in negro areas are located as follows:
‘Yamacraw Village’ ; ‘Carver Village area’—West Gwin
nett Street; ‘Pearl Smith School’, which is also out in that
area; ‘Cann’—Burroughs and W. 45th Street; ‘ Soldiers
Field Area—-Paulsen and Joe ; ‘Robert Hitch Housing Area.
Now that is six of them, I can’t think of the seventh at
present.
It has been the custom to use the parks separately for the
different races. I couldn’t say whether or not a permit
would or would not be issued to a person of color if that
person came to the office the Recreational Department and
requested a permit to play on the courts, but I am of the
opinion that it would have been, we have never refused one,
the request never has been made.
Grownups use Daffin Park at certain times and under cer
tain conditions, but to be frank with you I have never seen
any using the basketball courts, however grownups could
use them if there was no other need for them. To some
extent particular attire is required for use on the basket
ball court, because we feel some responsibility to the people,
in reference to the proper attire worn—we don’t want them
playing on there with baseball spikes on their shoes, or
track shoes, or, in some cases, certain types of other shoes
like shoes worn on a tennis court. We would expect them
to wear the usual basketball attire— short trunks and what
have you, if they were playing in one of our supervised
regulated programs, but we would probably not expect it
if they were playing in an unregulated and unsupervised
program, and it would be consistent with our program to
allow persons to wear ordinary clothing on the courts if
[fol. 57] they so chose to do so, I don’t think that we would
object to that. There is no minimum or maximum age limit
for the use of basket ball courts, however, at the present
time we have established a minimum—a maximum age limit
of 16 years for any playground area. Programming is not so
readily understood by lay people, by age grouping is taken
into consideration in programming because we don’t want
the older people competing with the younger people, and
we don’t like to have them associating because we don’t
think that a younger person should learn too much from the
46
older person or vice versa, we don’t think it conducive to
good community relations, the building of character and
the proper traits for younger people, and I think the school
systems have followed somewhat the same procedure in
segregating them in age groups, such as the younger school
groups, the junior highs, and the high schools, and it is for
the same purpose that we regulate our programs according
to age groups and, sometimes, sexes also, and all of this is
in accordance with, basically, a planned program. I could
not answer the question as to whether everyone using the
basketball courts come under the planned program, but
at times they do use it when we are not putting a plan into
action and when not using it, but I couldn’t say when or
where, because we are not there and we don’t know. There
is no regulation for playing on a Court when it is not in
use and there is no one around.
Redirect Examination by Mr. Garfunkel:
On school days these courts and the playground area at
Daffin Park are available for only certain age groups and
they are only used at that time of day by the schools in that
vicinity, it is, more or less, left available for them, that
is the way we have our recreation setup.
Most of our playground areas are arranged according
to the families living in that particular area, playgrounds
where there are white families and playgrounds where there
are colored families—most of them are arranged in that
manner according to the areas. We do feel this, that play
grounds are established within a distance of one mile of
the people who are expected to use them, and normally
when we find that when a playground is established with
that in mind that people who live within one mile of it
will use it, so if we put one in a predominantly negro
neighborhood, then, predominantly negroes would use it.
[fol. 58] and the same would be true for the whites, but, of
course, we can’t always control that because we do not have
the choice of locations where we would like to have them,
and that is the reason why some could very easily become
mixed areas, such as Park Extension, because that is within
a mile of both white and colored, and that is the reason
why both play in that area.
47
Recross Examination by Mr. Mayfield:
I don’t know whether or not we had a planned program
arranged for the day that these arrests were made, I would
have to check my records. We do not have parks in colored
areas that are comparable in size or comparable in facilities
to Daffin Park, but colored boys do fish in the pond at Daffin
Park. The size of the facilities would be determined by
the area. Cann Park is probably our most complete area
that is in a colored neighborhood, and on that we have a
tennis court—and we use that court for basketball, we have
swings, slides, soft ball field, a small practice field, which
is also used for football, and it also has a concrete spray
pool, picnic table, and a few other odds and ends of equip
ment, and it has a drinking fountain, and things of that
nature, which would make it about as well equipped as any
playground we have except for size.
I believe that the Cann Park basket ball court was com
pleted on January 23, 1961.
Q. If your planned program did not have the 23rd of
January, 1961, set aside for any particular activity would
it have been permissible to use this basket ball court in
Daffin Park in the absence of children.
A. I can’t very well answer that question because you
have several questions in one. First, I would like to say that
normally we would not schedule anything for that time
of the day because of the schools using the totals area there
and, second, I would not know whether we had something
scheduled without referring to my records. Now if the
schools were not there and were not using it and we had
no program planned we certainly would not have been con
cerned about other people using it. The schools use the
area during school hours. The Parochial School uses it
during recess and lunch periods and also for sport, as also
the Lutheran School, and the public schools bring their
students out there by bus and at various times during school
[fol. 59] hours all day long, we never know when they are
coming, and they use Cann Park the same way, I might add.
If it was compatible to our program we would grant a
permit for the use of the basket ball court in Daffin Park to
anyone regardless of race, creed or color, however, at that
48
time of day it would not be compatible to our program. If
that basket ball court was not scheduled it would be com
patible with our program for them to use it, and we would
not mind them using it. If there was a permit issued there
would be no objections as to race, creed or color.
C. C. D ickerson du ly sw orn, testified :
Direct Examination by Mr. Garfunkel:
On January 23rd of this year I was a Street Sergeant
with the Savannah Police Department. I was a Street
Sergeant around two o ’clock in the afternoon of that date
when I received a call to go to the vicinity of Daffin Park.
That was on a school day and school was in session on that
day.
When I arrived there I found certain men in the cus
tody of Officers Hillis and Thompson, these men are here
today, they are all sitting at the table there with their two
attorneys—there were seven originally, but there are only
six of the defendants sitting at the table—Garvin King,
age 19, hasn’t shown up today.
These defendants were under arrest when I arrived.
They called for the Street Sergeant, but before I got there
I heard them call for the wagon also. When I arrived I
found these defendants dressed up nicely, I don’t think
that all of them had suits on, but they had on nice pants
and shoes—they were all dressed nice. I would say that
they wasn’t dressed for playing basketball, if I were play
ing basketball I would have on something more comfortable
other than what they had on, all of the people were dressed
nice though.
Cross Examination of Mr. Dickerson by Mr. Gadsden:
All of the activities were over when I arrived there.
[fol. 60] I have played basketball, but along about the
time I played basketball out in the country I didn’t have
on shoes, I was dressed in the custom and style of that time.
I have been a policeman for quite sometime. I have seen
people playing on basketball courts in casual attire, but
49
I wouldn’t say that I have seen them playing basketball
while being dressed as nicely as these people were on this
particular day, but I ’d say that they sometimes play in
their ordinary clothes, but I ’d say also that they usually
play in dungarees and khaki and slacks, but these people
were dressed a little better than that.
I knew a basketball coach, who was thirty. Professional
players get on up above thirty years in age sometimes, and
I guess there are some people above thirty who play basket
ball.
G. W. H illis duly sworn, testified:
Direct Examination by Mr. Garfunkel:
My name is G. W. Hillis, I am a police officer of the
Savannah Police Department, and I was a member of and
on duty with the Savannah Police Department on or about
the 23rd day of January of this year; I was on duty then
and I had on my police uniform. I was on duty with Officer
Thompson, he also had on his police uniform, I was on duty
around two o’clock on the afternoon of the date in the
vicinity of Daffin Park, here in Savannah, Chatham County,
Georgia, at around that time I received some informa
tion from a white lady as a result of that informa
tion I went with Officer Thompson, in a police automobile,
to the basketball court in Daffin Park, here in Savannah,
Chatham County, Georgia. When I arrived there I saw the
defendants, they were playing basketball. Officer Thomp
son talked to them first, and then I talked to them. I asked
them to leave, Officer Thompson had already asked them,
I heard him ask them. They did not leave, and they did not
stop playing until I told them they were under arrest. We
called the wagon (cruiser). Officer Thompson told them
that they would have to leave, he told them that at first, and
they did have an opportunity to leave after he told them
that. He asked them to leave, and then I asked them to
leave after I saw they wasn’t going to stop playing, and
[fol. 61] when I asked them to leave one of them made a
sarcastic remark, saying: “ What did he say, I didn’t hear
him” , he was trying to be sarcastic. When I told them to
50
leave there was one of them who was writing with a pencil
and looking at our badge numbers. They all had an op
portunity to leave before I arrested them, plenty of time to
have left, but I told them to leave, they wouldn’t leave and
I put them under arrest.
Cross Examination by Mr. Mayfield:
When I arrived the defendants were playing basketball.
They were not necessarily creating any disorder, they were
just ‘shooting at the goal’, that’s all they were doing, they
wasn’t disturbing anything.
Redirect Examination by Mr. Garfunkel:
I am familiar with the fact that there are schools in that
area, and that children would be out there in about 15
minutes to play in that area.
Recross Examination by Mr. Mayfield:
The arrests were around two o ’clock. The schools dis
charge their students around two-thirty, I think
State Rests. 12:05 P.M. Defense Rests.
Motion by Mr. Gadsden— see rulings of the Court, be
ginning middle of page 1. (Jury excused)
* # # # #
51
I n t h e Cit y Court of S avannah
[Title omitted]
Order of C onsolidation— August 17, 1961
It appearing to the Court that the above stated cases
were tried in the City Court of Savannah on May 18, 1961,
and that all defendants therein were found guilty and
sentenced by the Court to pay $100.00 or serve 5 months
subject to the Board of Corrections of the State of Georgia.
It further appearing to the Court that Counsel for the
Defendants filed a Motion for a New Trial for each and
every defendant on the 23rd day of May, 1961, and that
said Motion was set for hearing on June 23, 1961, the
Honorable Columbus E. Alexander, Judge, then presiding,
continued the hearing on said Motion until the 21st day
of July, 1961, at which time said Motion and Brief of Evi
dence was submitted to the Court without argument of
Counsel. Said Motions for New Trial were considered by
the Court and on the 24th day of July, 1961, the Honorable
Columbus E. Alexander, Judge of said Court, entered an
Order overruling said Motions for New Trial on each and
every ground.
It further appearing to the Court that the Judgment and
sentence in said cases are predicated upon similar circum
stances and facts and involve the same defensive pleas and
same question of law.
It is therefore ordered by the Court that said cases be
consolidated and proceed to hearing before the Supreme
Court of Georgia as if all said cases had been originally
brought as such.
In Open Court, this 17th day of August, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah, Chatham County, Georgia.
Filed in office this 17th day of August, 1961. Beatrice M.
Gill, Dept. Clerk, City Court, Savannah.
# # * # # #
[fol. 63]
I n t h e S upbem e C ourt op Georgia
Case No. 21430
52
[fol. 67]
W righ t , et al.,
v.
T h e S tate .
O pin io n—November 9, 1961
By the Court:
1. A mere recital in the brief of the defendants of the
existence of an assignment of error, without argument or
citation of authorities in its support, and without a state
ment that it is insisted upon by counsel, is insufficient to
save it from being treated as abandoned.
2. It is not error in a criminal case for the trial judge
to refuse to direct a verdict of acquittal.
3. A demurrer which seeks to add facts not apparent on
the face of the accusation must fail as a speaking demurrer.
4. A Code section utilizing terms with an established
common-law meaning, and which is itself of common-law
origin, is sufficiently definite to apprise a person of common
intelligence with a standard which he may use in determin
ing its command; this more than satisfies the requirements
of due process.
5. An officer is not vested with arbitrary authority when
he only makes an arrest, and it is left to judicial processes
to ascertain if the described components of a criminal act
are present.
Submitted October 9, 1961—Decided November 9, 1961—
Rehearing denied November 21, 1961.
Unlawful assembly; constitutional question. Savannah
City Court. Before Judge Alexander.
53
[fol. 68] The defendants, Nathaniel Wright, Charles L.
Smart, Rosco(ef) White, James W. Thomas, Benjamin
Carter, and Judson Ford, were brought to trial in the
City Court of Savannah for violation of Code §26-5301
which reads “ Unlawful assemblies.—Any two or more per
sons who shall assemble for the purpose of disturbing the
public peace or committing any unlawful act, and shall not
disperse on being commanded to do so by a judge, justice,
sheriff, constable, coroner, or other peace officer, shall be
guilty of a misdemeanor.” The gravamen of the offense,
as detailed in the accusation, was: “ In that the said de
fendants did assemble at Baffin Park for the purpose of
disturbing the public peace and refused to disburse (sic)
on being commanded to do so by sheriff, constable, and
peace officer, to wit: W. H. Thompson and G. W. Hillis.”
Before their arraignment and before pleading to the ac
cusation, the defendants filed a general demurrer to the
accusation, contending that for five enumerated reasons
the Code section above cited is unconstitutional. The trial
judge overruled the general demurrer, and evidence was
then introduced by the State at the conclusion of which
counsel for the defendants made a motion to acquit. After
the argument of counsel, in the absence of the jury, the
trial judge denied the motion to acquit. The jury was re
called and, after argument of counsel and the charge of the
court, returned a verdict of guilty. Whereupon the trial
judge sentenced each defendant to pay a fine of $100 or to
serve five months imprisonment, with the exception of the
defendant Wright, who was sentenced to pay a fine of $125
or to serve six months imprisonment.
The defendants filed a motion for new trial which was
subsequently overruled on each and every ground. The
[fol. 69] trial judge then issued an order permitting the
defendants’ cases to be consolidated since all the cases were
predicated upon identical circumstances and facts, and in
volved the same defensive pleas and the same questions of
law.
The defendants excepted and assign error on the over
ruling of their general demurrer, the refusal by the trial
judge to direct a verdict of acquittal, the denial of their
54
motion for a new trial, and on the judgment sentencing the
defendants. Each of these assignments of error will be
considered in order inverse from that in which it is above
presented.
E. H. Gadsden, B. Clarence Mayfield, for plaintiffs in
error. Andrew J. Ryan, Solicitor-General, Sylvan A. Gar-
funkel, contra.
[fol. 70] Quillian, Justice. 1. In their bill of exceptions
the defendants assign error on the judgment sentencing
each defendant (fourth ground) and on the denial of their
motion for a new trial (third ground). However, in their
brief to this court they completely omitted the fourth
ground and merely referred to the third ground by asking:
“ Did the court commit error in overruling plaintiff’s in
error motion for new trial?” There was no argument, cita
tion of authority, or statement that such grounds were still
relied upon. Therefore, the applicable rule, as laid down
in Henderson v. Lott, 163 Ga. 326 (2) (136 SE 403), is:
“Assignments of error not insisted upon by counsel in
their briefs or otherwise will be treated by this court as
abandoned. A mere recital in briefs of the existence of
an assignment of error, without argument or citation of
authorities in its support, and without a statement that
it is insisted upon by counsel, is insufficient to save it from
being treated as abandoned.” Almand v. Pate, 143 Ga. 711
(1) (85 SE 909); Head v. Lee, 203 Ga. 191, 202 (45 SE 2d
666); The B-X Corp. v. Jeter, 210 Ga. 250 (4) (78 SE 2d
790).
2. The second ground upon which the defendants rely
is that the trial judge erred in failing to direct a verdict
of acquittal for the defendants at the conclusion of the
State’s evidence. It is not error in a criminal case to refuse
to direct a verdict of not guilty. Winford v. State, 213 Ga.
396, 397 (99 SE 2d 120); Williams v. State, 206 Ga. 107
(10) (55 SE 2d 589); Coleman v. State, 211 Ga. 704 (2)
(88 SE 2d 381); Baugh v. State, 211 Ga. 863 (1) (89 SE 2d
504).
55
3. The first ground in the hill of exceptions is that the
trial judge erred in overruling their general demurrers
to the accusation. The defendants urge five contentions as
[fol. 71] to why Code §26-5301, per se and as applied, vio
lates rights secured to them by the Constitutions of the
United States and of Georgia. Contentions (3) and (4)
attack the Code section in question as unconstitutional as
applied, since it was used to enforce racial discrimination,
and as unconstitutional in that the arrest was pursuant to
the policy, custom, and usage of the State of Georgia, which
compels segregation of the races.
Neither of these two contentions can be ascertained from
an examination of the accusation. A demurrer may prop
erly attack only those defects which appear on the face of
the petition, indictment, or, in this case, accusation. A
demurrer which seeks to add facts not so apparent or to
supply extrinsic matters must fail as a speaking demurrer.
Jackson v. State, 64 Ga. 344; Arthur v. State, 146 Ga. 827
(92 SE 637). See also Walters v. State, 90 Ga. App. 360,
365 (83 SE 2d 48).
4. Contentions (1) and (2) attack the Code section, on
its face, as violative of due process of law guaranteed^ by
the Fourteenth Amendment to the United States Constitu
tion and by the Georgia Constitution, arguing that said
Code section is so vague that the defendants are not placed
on notice as to what criminal act they have allegedly com
mitted, rendering it impossible to answer the charge or to
make legal defense, and unconscionably vague in that no
where in the statute does there appear a definition of dis
turbing the public peace or committing any unlawful act.
Since the defendants were charged only with “ disturbing
the public peace,” the alleged vagueness of “ committing any
unlawful act” need not be considered. Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (62 S. Ct. 766, 86 LE 1031);
Whittle v. Jones, 198 Ga. 538, 544 (32 SE 2d 94); Kryder
[fol. 72] v. State, 212 Ga. 272, 274 (91 SE 2d 612). Neither
does the defendants’ purported attack on the Code section
under the Georgia Constitution raise any meritorious issue.
In order to raise a question as to the constitutionality of a
statute, the provision of the Constitution alleged to have
56
been violated must be clearly specified and designated,
reference being made to the part, paragraph, or section.
Clements v. Powell, 155 Ga. 278, 280 (8) (166 SE 624);
Inlaw v. State, 168 Ga. 377 (1) (147 SE 881); Johns v.
State, 180 Ga. 187, 188 (3) (178 SE 707); Manufacturers
Trust Co. v. Wilby-Kincey Service Corp., 204 Ga. 273, 274
(49 SE 2d 514); Krasner v. Rutledge, 204 Ga. 380, 382
(49 SE 2d 864).
The United States Supreme Court has held that a statute
is not unconscionably vague where its provisions employ
words with a well-settled common-law meaning ( Waters-
Pierce Oil Co. v. Texas, 212 U.S. 86, 108-111, 29 S. Ct.
220, 53 LE 417); Nash v. United States, 229 U.S. 373, 376-
378, 33 S. Ct. 780, 57 LE 1232; Hygrade Provision Co. v.
Sherman, 266 U.S. 497, 502, 45 S. Ct. 141, 69 LE 402),
approved in Connally v. General Const. Co., 269 U.S. 385,
391 (46 S. Ct. 126, 70 LE 322); or is not couched in terms
so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application. Whit
ney v. California, 274 U.S. 357, 368 (47 S. Ct. 641, 71 LE
1095); Fox v. Washington, 236 U.S. 273, 276-278 (35 S.
Ct. 383, 59 LE 573); Miller v. Strahl, 239 U.S. 426, 434 (36
S. Ct. 147, 60 LE 364); Omaechevarria v. Idaho, 246 U.S.
343, 348 (38 S. Ct. 323, 62 LE 763); United States v. Alford,
274 U.S. 264, 267 (47 S. Ct. 591, 71 LE 1040).
Here the term “ disturbing the public peace” is of generic
common-law origin. Faulkner v. State, 166 Ga. 645, 665
(144 SE 193); 11 C.J.S. 817, §1. “Disturbing the peace”
or its synonym, “ breach of peace,” has long been inherently
[fol. 73] encompassed in our law and is prevalent in the
various jurisdictions. 11 C.J.S. 817 et seq., §2 et seq.; 8
Am. Jur. 834 et seq., §3 et seq.
Further, the crime of unlawful assembly is itself of
common-law origin, Reg. v. Pugh (1704), 87 Eng. Reprint
900, Rex v. Birt (1831), 172 Eng. Reprint 919, 91 C.J.S.
495, §1; 46 Am. Jur. 126, §2; is described in slightly vary
ing forms in the vast majority of jurisdictions (Annot.,
71 ALR 2d 875); and in our own State was codified in the
Penal Code of 1816 (Ga. L. 1816, p. 178; Lamar’s Comp. p.
592).
57
“ The uncertainty in a statute which will amount to a
denial of due process of law is not the difficulty of ascertain
ing whether close cases fall within or without the prohibi
tion of the statute, but whether the standard established
by the statute is so uncertain that it cannot be determined
with reasonable definiteness that any particular act is dis
approved ; and a criminal statute is sufficiently definite if
its terms furnish a test based on knowable criteria which
men of common intelligence who come in contact with the
statute may use with reasonable safety in determining its
command.” 163 A.L.R. 1108, Annotating Minnesota v.
Lanesboro Produce Co., 221 Minn. 246 (21 NW 2d 792)
(citing Nash v. United States, supra, United States v.
Wurzbaeh, 280 U.S. 396, 50 S. Ct. 167, 74 LE 508, and
Collins v. Com. of Kentucky, 234 U.S. 634, 34 S. Ct. 924,
58 LE 1510). The language of the Code section in ques
tion is pronounced in terms so lucid and unambiguous that
a person of common intelligence would discern its meaning
and apprehend with what violation he was charged. Farrar
v. State, 187 Ga. 401 (200 SE 803); Fowler v. State, 189
Ga. 733 (8 SE 2d 77); Watson v. State, 192 Ga. 679 (16
SE 2d 426).
5. The last contention (5) assigned, that the Code sec-
[fol. 74] tion confers untrammeled and arbitrary authority
upon the arresting officer, has no merit since we have de
termined that the statute has a clear-cut standard to ap
prise one of what constitutes a criminal act and thus to
guide the conduct of such officer. There is no usurpation
of judicial authority, nor the improper delegation of ju
dicial discretion, since the officer involved only makes the
arrest when, in his discretion, he believes a crime to have
been perpetrated. The innocence or guilt, beyond a rea
sonable doubt, of the accused must still be determined by
judicial process.
This is a case of first impression in this State, and our
research has failed to reveal any full-bench decisions from
other jurisdictions on the exact question of the constitu
tionality of a similar unlawful-assembly statute. Neverthe
less, see Code v. Arkansas, 338 U.S. 345 (70 S. Ct. 172, 94
LE 155). However, by applying the well-recognized prin-
58
ciples. and applicable tests above stated, we find no depriva
tion of the defendants’ constitutional rights under the
Fourteenth Amendment of the United States Constitution.
Judgment affirmed. All the Justices concur.
[fol. 75]
Iisr th e S uprem e C ourt oe G eorgia
J udgm ent— November 9, 1961
The Honorable Supreme Court met pursuant to adjourn
ment. The following judgment was rendered:
N ath an iel W righ t et al.,
v.
T h e S tate .
This case came before this court upon a writ of error
from the City Court of Savannah; and, after argument
had, it is considered and adjudged that the judgment of the
court below be affirmed. All the Justices concur.
[fol. 76]
I n th e S uprem e C ourt of G eorgia
[Title omitted]
M otion for R ehearing— Filed November 17, 1961
Now Come Nathaniel Wright, Charles L. Smart, Roscoe
White, James W. Thomas, Benjamin Carter and Judson
Ford, and within the time allowed by law, file this their
Motion for Rehearing in the case stated, and for grounds
thereof, say:
—1—
This Honorable Court seems to have completely disre
garded the fact that the plaintiff’s-in-Error were “peace-
59
ably” playing basketball at tbe time immediately preceding
the arrest.
—2—
The arresting Officers testified that the arrest was made
solely because the Plaintiff’s-in-Error are Negroes.
— 3—
The United States Constitution clearly imposes a pro
hibition upon a State from denying equal protection of the
law to its Citizens.
—4—
An arrest based upon color without any supposed viola
tion of the law constituted a deprivation of the Plaintiff’s-
in-Error constitutional rights under the Fourteenth Amend
ment of the United States Constitution.
[fol. 77]
—5—
The evidence shows beyond a reasonable doubt that the
Plaintiffs-in-Error were not violating any law other than
the fact that they were playing basketball in a municipally
owned and operated “white” park, and there was no “breach
of the peace” on the part of Plaintiffs-in-Error.
We respectfully submit that the Court, in its opinion
in this case, has overlooked the essential fact that there
was no disorder at any time on the part of the Plaintiffs-
in-Error, either before or after the arrest.
WTherefore, your Petitioners pray that a rehearing be
granted in this case, and the position of the Court reversed.
B. Clarence Mayfield, 4581/2 West Broad Street,
Savannah, Georgia; E. H. Gadsden, 458^2 West
Broad Street, Savannah, Georgia, Attorneys for
Plaintiffs-in-Error.
* * * * #
58
ciples and applicable tests above stated, we find no depriva
tion of the defendants’ constitutional rights under the
Fourteenth Amendment of the United States Constitution.
Judgment affirmed. All the Justices concur.
[fol. 75]
I n th e S u prem e C ourt op G eorgia
J udgm ent— November 9, 1961
The Honorable Supreme Court met pursuant to adjourn
ment. The following judgment was rendered:
N ath an iel W right et al.,
v.
T h e S tate .
This case came before this court upon a writ of error
from the City Court of Savannah; and, after argument
had, it is considered and adjudged that the judgment of the
court below be affirmed. All the Justices concur.
[fol. 76]
I n t h e S uprem e C ourt op G eorgia
[Title omitted]
M otion por R ehearing— Filed November 17, 1961
Now Come Nathaniel Wright, Charles L. Smart, Roscoe
White, James W. Thomas, Benjamin Carter and Judson
Ford, and within the time allowed by law, .file this their
Motion for Rehearing in the case stated, and for grounds
thereof, say:
— 1—
This Honorable Court seems to have completely disre
garded the fact that the plaintiff’s-in-Error were “peace-
59
ably” playing basketball at the time immediately preceding
the arrest.
—2—
The arresting Officers testified that the arrest was made
solely because the Plaintiff’s-in-Error are Negroes.
—3—
The United States Constitution clearly imposes a pro
hibition upon a State from denying equal protection of the
law to its Citizens.
—4—
An arrest based upon color without any supposed viola
tion of the law constituted a deprivation of the Plaintiff’s-
in-Error constitutional rights under the Fourteenth Amend
ment of the United States Constitution.
[fol. 77]
—5—
The evidence shows beyond a reasonable doubt that the
Plaintiffs-in-Error were not violating any law other than
the fact that they were playing basketball in a municipally
owned and operated “white” park, and there was no “ breach
of the peace” on the part of Plaintiffs-in-Error.
We respectfully submit that the Court, in its opinion
in this case, has overlooked the essential fact that there
was no disorder at any time on the part of the Plaintiffs-
in-Error, either before or after the arrest.
Wherefore, your Petitioners pray that a rehearing be
granted in this case, and the position of the Court reversed.
B. Clarence Mayfield, 458y2 West Broad Street,
Savannah, Georgia; E. H. Gadsden, 458y2 West
Broad Street, Savannah, Georgia, Attorneys for
Plaintiffs-in-Error.
#
[fol. 80]
I n t h e S uprem e Court of G eorgia
Atlanta
O rder D en yin g M otion for R ehearing— November 21, 1961
The Honorable Supreme Court met pursuant to adjourn
ment. The following order was passed:
60
N ath an iel W righ t et al.,
v.
T h e S tate .
Upon consideration of the motion for a rehearing filed in
this case, it is ordered that it be hereby denied.
[fol. 81] Clerk’s Certificate (omitted in printing).
[fol. 82]
S uprem e C ourt of t h e U nited S tates
No. 729, October Term, 1961
N ath an iel W rig h t , et ah, Petitioners,
vs.
G eorgia.
O rder A llow in g Certiorari— June 25, 1962
The petition herein for a writ of certiorari to the Su
preme Court of the State of Georgia is granted, and the
case is transferred to the summary calendar. The case is
set for argument to follow No. 750.
And it is further ordered that the duly certified copy
of the transcript of the proceedings below which accom
panied the petition shall be treated as though filed in re
sponse to such writ.
Mr. Justice Frankfurter took no part in the consideration
or decision of this petition.
61
[fol. 83]
I n th e Cit y C ourt o r S avann ah
Georgia, )
Chatham County. )
Criminal No..................
Violation of Georgia Law 26-5301, Code of 1933,
a Misdemeanor
S tate oe Georgia, Plaintiff,
vs.
N ath an iel W rig h t , et al., Defendants.
Tried in the City Court of Savannah, Chatham County,
Georgia, before the Honorable Columbus E. Alexander,
Judge of said Court, with a Jury.
A ppearan ces :
Sylvan A. Garfunkel, Esq., Asst. Solicitor General,
Court House, Savannah, Ga., For State.
E. A. Gadsden, Esq., B. C. Mayfield, Esq., Attorneys
at Law, Savannah, Georgia, For Defendants.
Charge op th e Court—Filed July 24, 1961
Judge Alexander:
Gentlemen of the jury, this is the case of the State
versus six defendants. I will read them to you, and you
will have this with you in your Jury Boom when you retire:
Nathaniel Wright, Charles L. Smart, Boscoe White, James
W. Thomas, Andrew McArthur, and Judson Ford. You
will notice one name, that I have circled, that is not being
tried, you are not concerned with King not being tried
today, so these six defendants are the defendants in this
62
case in which yon are interested during the course of your
[fol. 84] deliberation.
These defendants are charged with the violation of
Georgia Law 26-5301, Code of Georgia of 1933, which is
a Misdemeanor.
To these accusations, or to this accusation against these
six defendants, the defendants enter a plea of not guilty.
That puts in issue the averments contained in the accusa
tion, as well as the guilt or the innocence of the defendants
being tried in this case.
I charge you, gentlemen, that in all criminal cases the
defendant (or defendants), if they desire to do so, shall
have the right to make to the Court and jury such state
ment (or statements) of the case as they may deem proper
in their defense, and such statement (or statements) shall
have such force only as the jury may think right to give
said statement (or statements), and they may believe the
same in preference to the sworn testimony in the ease.
I charge you further, gentlemen, that the burden is upon
the State to prove the guilt of these defendants beyond a
reasonable doubt; they entered upon the trial of these cases
with the presumption of innocence in their favor and this
presumption follows them throughout the trial unless and
until sufficient evidence has been introduced by the State
to satisfy your minds beyond a reasonable doubt of the
guilt of these defendants of the charges contained in the
accusation.
A reasonable doubt is one that grows out of the testi
mony or the lack of testimony—it is not an artificial or
capricious doubt, but it should be real, honestly and fairly
entertained by the jury after every reasonable effort to
find out the truth of the case, and if at the end of your
deliberation you have this character of doubt upon your
minds you should give the defendants the benefit of it
and acquit them, but, on the other hand, if you do not have
such character of doubt upon your minds, and you believe
that the State has made out the case as contained in the
accusation under the evidence and under all the facts and
circumstances of the case in its entirety beyond a reason
able doubt it will be your duty to convict the defendants.
63
[fol. 85] The true question in criminal cases is not whether
it be possible that the conclusion to which the testimony
points may be false, but whether there be sufficient testi
mony to satisfy your minds beyond a reasonable doubt that
these defendants are guilty of the offenses charged in the
accusations.
I further charge you, gentlemen of the jury, that you are
the judges of both the law and the facts in cases of this
nature; the law is given you in charge by the Court, the
facts you get from the witnesses, who are sworn and who
testify in the case, upon the statements of the defendants,
from all the facts and circumstances of the case in its
entirety, and during your deliberation you weigh the evi
dence of the case in the light of the law applicable to the
case, as given you in charge by the Court.
As stated to you, in the beginning of this charge, these
defendants are charged with the violation of Georgia Law,
Code Section 26-5301 of the Georgia Code of 1933. More
specifically, these defendants: Benjamin Carter, James W.
Thomas, Roscoe White, Charles L. Smart, Judson Ford and
Nathaniel Wright, are charged, that in Chatham County,
Georgia, with the offense of a misdemeanor, in that said
defendants, in said County and State, on the 23rd day of
January of this year, in that said defendants did assemble
at Daffin Park for the purpose of disturbing the peace and
they refused to disperse on being commanded to do so by
Sheriff, Constable and Peace Officers, to-wit: W. H. Thomp
son and G. W. Hillis, contrary to the laws of this State,
the good order, peace and dignity thereof. I further charge
you that this accusation is brought pursuant to Code Sec
tion 26-5301 of the 1933 Criminal Code of Georgia, the
heading of the Section under which this accusation is
brought is “ Unlawful Assembly” , and it reads as follows:
“ Any two or more persons, who shall assemble for the
purpose of disturbing the public peace, or committing
any lawful act, and shall not disperse on being com-
[fol. 86] manded to do so by a Judge, Justice, Sheriff,
Constable, Coroner, or any other Peace Officer, shall be
guilty of a misdemeanor.”
64
That is the law that these defendants are charged with
violating, and further in connection with that I charge you
that the term “ Other Peace Officer” , mentioned in this Sec
tion, would include police officers of the Police Department
of the City of Savannah, Georgia.
That, gentlemen, is the law of the case. You are the
judges of the facts and there is nothing left for me to do
now except instruct you as to the form of your verdict.
If you find the defendants guilty the form, of your ver
dict, in substance, should be: “ We the jury find the de
fendants guilty”— see that your verdict is dated and signed
by your foreman.
If you find the defendants not guilty the form of your
verdict, in substance, should be: “We the jury find" the
defendants not guilty” , see that your verdict is signed and
dated by your foreman.
Thank you gentlemen, now you may retire and deliberate
upon your verdict.
End of Charge
Reporter’s Certificate to foregoing paper (omitted in
printing).
[fol. 87] The above and foregoing 3 pages of typewritten
material are approved as containing the correct charge as
given the jury in the aforesaid case, and the same are
hereby ordered filed as part of the record in said case.
This 24th day of July, 1961.
Columbus E. Alexander, Judge, City Court of
Savannah.
[File endorsement omitted]
65
[fol. 88]
Violation of Georgia Law 26-5301, Code of 1933,
» a Misdemeanor
S tate of G eorgia,
y s .
N ath an iel W righ t , et al.
I, Jeff F. Dickey, Clerk of the City Court of Savannah,
do hereby certify that the attached and foregoing, is a
true, correct and complete transcript of the Charge of the
Court rendered by Judge Columbus E. Alexander, Judge
of the City Court of Savannah at the trial of this case.
In Witness Whereof, I have hereunto set my hand and
affixed the seal of the City Court of Savannah this 23rd
day of July, 1962.
Jeff F. Dickey, Clerk, City Court of Savannah,
Georgia.
[ S e a l ]